SOUTHEASTERN PAIN SPECIALISTS, P.C.
BROWN et al. DOHERTY
BROWN et al. .SOUTHEASTERN PAIN AMBULATORY SURGERY CENTER, LLC
BROWN et al.
companion appeals raise questions about when a jury
considering a medical malpractice case might also be
instructed on issues of ordinary negligence. Sterling Brown
Sr. sued the defendants individually and on behalf of his
wife, Gwendolyn Lynette Brown, after she suffered
catastrophic brain damage, allegedly from oxygen deprivation
while undergoing a procedure to relieve back pain. Mrs. Brown
died while this suit was pending, and the complaint was
amended to add a wrongful death claim. A trial in which
the court instructed the jury on both ordinary negligence and
medical malpractice resulted in an award of nearly $22
million. A divided Court of Appeals affirmed. We granted the
defendants' petitions for certiorari to consider their
argument that the Court of Appeals erred by concluding that
the evidence supported a claim of ordinary negligence.
plaintiffs' case of medical malpractice was very strong.
But a very strong case of medical malpractice does not become
a case of ordinary negligence simply due to the egregiousness
of the medical malpractice. The Court of Appeals erred in
concluding that an ordinary negligence instruction was
authorized by evidence that a doctor defendant responded
inadequately to medical data provided by certain medical
equipment during a medical procedure. Because the verdict was
a general one such that we cannot determine that the jury did
not rely on this erroneous theory of liability, we reverse
with instructions that the Court of Appeals on remand order a
full retrial as to the appellants.
Background and procedural history
evidence presented at trial was as follows. Dr. Dennis
Doherty, an anesthesiologist and pain management specialist,
began treating Gwendolyn Lynette Brown for chronic back pain
in 2008. Dr. Doherty performed two epidural steroid injection
procedures ("ESIs") on Mrs. Brown without incident.
On September 16, 2008, Mrs. Brown arrived at the surgery
center that Dr. Doherty had opened in 2006 ("the Surgery
Center") for a third ESI. After her vital signs were
assessed, Mrs. Brown was given a pain reliever and a sedative
and placed face down on a surgical table. Some time later, at
about 5:30 p.m., Dr. Doherty came into the operating room,
administered propofol (another, different sedative), and
started the procedure. Mrs. Brown's blood oxygen
saturation level at this point was recorded at 100
after Dr. Doherty began the procedure, the pulse
oximeter that was used to monitor Mrs. Brown's
blood oxygen saturation level sounded an alarm, indicating a
drop in the level of oxygen in her blood. Michelle Perkins, a
surgical technician involved in the procedure, at several
points tried to turn up the oxygen, but each time Dr. Doherty
told her to return to the imaging machine she had been
operating. Ann Yearian, a nurse who was assisting, testified
that at Dr. Doherty's direction she turned up the oxygen
being administered to Mrs. Brown. Yearian began performing a
"jaw thrust" - a procedure to open a patient's
airway by repositioning her jaw. But Yearian reported
difficulty, so Dr. Doherty paused his work of administering
the epidural and assisted with the jaw thrust. Perkins asked
Dr. Doherty if she should call nursing director Mary
Hardwick, but he told her not to, saying Mrs. Brown was
breathing and her airway was good. Perkins nonetheless tried
to summon Hardwick with a surreptitious text message.
Hardwick arrived, Mrs. Brown was lying face down on the table
with five-inch needles in her back, Dr. Doherty was at the
head of the table holding her jaw to maintain an airway, and
the pulse oximeter was sounding an alarm and registering
zero. The blood pressure monitor was recycling,
inflating repeatedly without registering a reading. Hardwick
grabbed a stretcher so that Mrs. Brown could be turned on her
back to be resuscitated, but Dr. Doherty would not allow it.
Instead, he told Hardwick that the pulse oximeter was
malfunctioning and did not show Mrs. Brown's true oxygen
saturation, and that Mrs. Brown had a pulse, was breathing,
and was fine. Perkins retrieved a second pulse oximeter at
Hardwick's directive and Hardwick placed it on Mrs.
Brown's toe, but it also registered a reading of zero
oxygen saturation. Dr. Doherty continued to insist that
everything was fine and resumed the procedure as various
staffers attempted to physically maintain Mrs. Brown's
airway. The procedure was completed at 5:48 p.m, 18 minutes
after it began.
Dr. Doherty completed the procedure and the needles were
removed, Mrs. Brown was turned onto her back and placed on a
stretcher. A pulse oximeter began registering a blood oxygen
level in the low 50-percent range. Mrs. Brown was given drugs
to reverse the effects of some of the drugs she had been
given previously. Dr. Doherty began manually ventilating Mrs.
Brown with a bag valve mask. Within a couple of minutes, her
oxygen levels rose to the 90s; she was able to maintain that
level with oxygen being administered. Hardwick asked if she
could call 911, but Dr. Doherty told her not to, saying that
Mrs. Brown was just heavily sedated.
about 7:30 p.m., when Mrs. Brown had not fully awoken or
responded normally to voice or painful stimuli, she was taken
to a hospital by emergency medical personnel. Dr. Doherty
told Mrs. Brown's daughter-in-law, the emergency medical
technicians who responded to the practice's 911 call, and
the physician who admitted Mrs. Brown to the hospital that
the ESI had gone fine and Mrs. Brown simply was having
complications coming out of the anesthesia slowly; he gave no
indication that Mrs. Brown might have experienced respiratory
complications during the procedure. Mrs. Brown arrived at the
hospital in what the admitting physician described as
"acute respiratory failure." Mrs. Brown remained
profoundly cognitively impaired and a quadriplegic for six
years until her death in September 2014. The plaintiffs
presented evidence that Mrs. Brown had suffered a
catastrophic brain injury caused by oxygen deprivation during
the ESI and that she died from complications of that injury.
plaintiffs sued Dr. Doherty, Hardwick, Southeastern Pain
Ambulatory Surgery Center, LLC ("the LLC"), and
Southeastern Pain Specialists, P.C. ("the
P.C."). The complaint and subsequent amendment
were entitled "Complaint for Medical Malpractice, "
but proposed pre-trial orders filed by the parties framed the
plaintiffs' allegations as including both medical
malpractice and ordinary negligence. The plaintiffs at
various points raised several possible theories of liability,
including that Dr. Doherty improperly administered propofol
to Mrs. Brown - an obese patient with sleep apnea - without
positioning another anesthesiologist or a nurse anesthetist
at the head of the table to monitor her airway; that Dr.
Doherty failed to respond appropriately when Mrs. Brown
experienced respiratory distress; and that Dr. Doherty failed
to contact emergency medical services promptly. Among other
things, the plaintiffs also alleged that Hardwick knew that
Doherty was impaired by a condition that interfered with his
ability to practice medicine and that Hardwick failed to warn
patients about his impairment or otherwise intervene to
protect them from harm.
January 2015 trial, the court charged the jury on both
ordinary negligence and medical malpractice. Arguing for the
ordinary negligence instruction, the plaintiffs' counsel
cited the "obvious" obligation "to save the
patient if they're not breathing" and
misrepresentations that Dr. Doherty made to other healthcare
providers. The defendants objected to the charge on ordinary
negligence, arguing among other things that it was not
warranted by the evidence.
those instructions in closing, the plaintiffs argued to the
Now, look, this case is a case of negligence, right? Neglect.
And negligence the judge will tell you . . . is the failure
to use care that is ordinarily used by ordinarily careful
persons. You just have to use care under the circumstances
presented, not under the circumstances of the first two
procedures, but the circumstances presented when ...